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  • Writer's pictureWendy Crowther

How Do I Know If My Lawyer Committed Legal Malpractice?

The thought of speaking with an attorney can be overwhelming or downright dreaded, even more so if you already feel betrayed or let down by prior counsel. This is often the situation for clients who consult us regarding potential legal malpractice. Worse yet, there are some folks who are aware that something bad happened with their case or transaction, but do not yet realize their attorney has committed malpractice. That can be an even more difficult conversation.

So, what is legal malpractice? Simply put, it is a lawyer’s breach of duty which causes damages. More specifically, legal malpractice must meet four requirements: (1) a duty of care (typically this means an attorney-client relationship, but not always); (2) a breach of that duty by the lawyer; (3) “proximate cause” (meaning the breach of duty must be a substantial contributing factor to the damages of the client); and (4) actual damages.

The first requirement, the duty of care, is usually established by a retainer agreement between you and the lawyer, but not always. Any time a lawyer agrees to use her professional knowledge and expertise, she is required to do so within certain parameters and guidelines including, but not limited to, the Rules of Professional Conduct (“RPCs”). Sometimes a lawyer will even owe a duty to a non-client; for example, where the work or representations are meant to be relied upon by others.

The second requirement, a breach of duty, can sometimes be obvious, such as in the instance of missing a filing deadline. The breach can be less obvious, however, such as in the case of a judgment call at trial that leads to a horrible result.

Third, that breach must be a substantial factor in the damages of the client, meaning it was at least a prominent factor in causing the loss.

Finally, there must be actual damages. If an attorney commits malpractice but it does not result in any actual damage to the client, there is no cause of action.

The easiest way to digest these requirements is to give an example. Let us assume a lawyer agrees to take on a negligence case which has a two-year statute of limitations. The statute of limitations means that any Complaint must be filed within two years after the date the negligence occurs. If the attorney fails to file a Complaint on behalf of his client within those two years, he risks being found liable for legal malpractice. In a step-by-step analysis, we can see that: (1) by agreeing to take on the case, the attorney has a duty to the client to diligently pursue it; (2) the attorney breached said duty by failing to file the Complaint on time; (3) this failure led to the client’s negligence claim being “time-barred” and essentially lost forever; and (4) any compensable injuries the client may have had represent real damages, as long as they were provable.  

What does a successful litigant receive if legal malpractice is proven? Awards can include disgorgement (return) of any fees paid to the lawyer, actual and compensatory damages, and attorney’s fees and costs in the legal malpractice action.  Typically these damages are covered by the attorney’s professional liability insurance.

If you have questions about whether you were properly represented, give us a call.

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